White House subpoenas ratchet up confrontation with Congress over U.S. attorney firings

After months of threats, Congress on Wednesday issued its first White House subpoenas in the investigation into the firing of nine U.S. attorneys, seeking testimony from two former aides as well as a broad range of internal documents.

WASHINGTON — After months of threats, Congress on Wednesday issued its first White House subpoenas in the investigation into the firing of nine U.S. attorneys, seeking testimony from two former aides as well as a broad range of internal documents.

If the White House resists, it could trigger contempt proceedings in Congress and ultimately a court fight over claims of executive privilege versus lawmakers' exercise of oversight powers.

The congressional inquiry is seeking to determine whether the White House improperly allowed politicization of the Justice Department.

The subpoenas from the chairmen of the House and Senate Judiciary Committees demand all White House documents related to the hiring and replacement of U.S. attorneys and the handling of the firing controversy. That includes documents generated by, received by, or mentioning President Bush's political adviser Karl Rove as well as other top current and former aides.

The subpoenas also call former White House Counsel Harriet Miers and former political director Sara Taylor, who reported to Rove, to testify before House and Senate committees next month. Rove and other current aides involved in the controversy were not subpoenaed in this initial round.

Previously, the Justice Department has turned over thousands of pages of records and made department officials available for testimony. But the White House, through Counsel Fred Fielding, has declined to give up internal documents or allow aides to testify in public or to be interviewed in private with a transcript.

Congress has rejected the White House's counteroffer to make some documents available if taken as part of a deal in which aides would talk privately with lawmakers with no official record of their statements.

The White House said Wednesday it was reviewing the subpoenas, but showed no inclination to comply. Spokesman Tony Fratto accused Senate Judiciary Chairman Patrick Leahy, D-Vt., and House Judiciary Chairman John Conyers, D-Mich., of being "more interested in media drama than facts." Fratto said: "The committees can easily obtain the facts they want without this confrontational approach by simply accepting our offer for documents and interviews."

Miers and Taylor did not return calls seeking comment.

Leahy issued a statement saying that the White House "cannot have it both ways. It cannot stonewall congressional investigations by refusing to provide documents and witnesses, while claiming nothing improper occurred."

Conyers said the investigation "will not end until the White House complies with the demands of this subpoena."

Legal scholars disagree on whether the White House would prevail.

Douglas Kmiec, a constitutional law professor at Pepperdine University and former Reagan Justice Department official, said such confrontations typically are resolved before they get to court, either when the president offers some compromise or Congress backs down.

Although President Nixon was compelled to turn over tapes in the Watergate scandal, Kmiec said, "there was an ongoing criminal prosecution in Watergate."

In contrast, he said, "Here, we not only don't have the criminal prosecution ongoing, we don't have a crime. There have been lots of allegations that the U.S. attorneys were removed because they were involved in sensitive prosecutions, but those have remained entirely at the allegation level."

But Laurie Levenson, a Loyola University law school professor and former federal prosecutor, said, "I don't think it's a slam-dunk for the White House. The committees have never actually been able to find out who put the names on the firing lists. So there's at least a good faith ground for issuing these subpoenas."

Meanwhile, the Senate Judiciary Committee planned to meet Thursday to consider more subpoenas, this time for Justice Department documents setting out the legal justification for the administration's warrant-less domestic eavesdropping program.

Leahy and the panel's senior Republican, Arlen Specter of Pennsylvania, have been demanding that Attorney General Alberto Gonzales turn over documents justifying the program in which the National Security Agency, without court approval, monitored overseas phone calls and emails of Americans suspected of belonging to terrorist groups.